Backpedalling in Place: The Ali's Move from 'Affirmative' to 'Contextual' Consent

13 Pages Posted: 13 Jan 2016

See all articles by Kevin Cole

Kevin Cole

University of San Diego School of Law

Date Written: January 11, 2016


After criticism of the April 2015 draft amendments to the Model Penal Code’s sexual assault provisions, the reporters have circulated two revised drafts. The latest draft has sensibly moved away from requiring “affirmative consent” for all sex acts. As to acts of penetration (including digital penetration and oral sex), however, the draft continues an approach that is in tension with the Code’s preference for subjective liability standards and its rejection of a tort negligence standard for criminal liability. While the latest draft claims to abandon an “affirmative consent” approach in favor of a “contextual consent” approach, this new approach is only modestly different from that of previous drafts, and the differences do not address most of the problems present in the earlier draft. Moreover, changes since the April draft raise new questions about the special provision on sex with intoxicated partners.

Keywords: sexual assault, affirmative consent, contextual consent, intoxication, subjectivism, negligence

JEL Classification: K14

Suggested Citation

Cole, Kevin L., Backpedalling in Place: The Ali's Move from 'Affirmative' to 'Contextual' Consent (January 11, 2016). San Diego Law Review, Forthcoming, San Diego Legal Studies Paper No. 16-208, Available at SSRN:

Kevin L. Cole (Contact Author)

University of San Diego School of Law ( email )

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San Diego, CA 92110-2492
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